Karish and Karish

[2007] FamCA 1162

FAMILY COURT OF AUSTRALIA

KARISH & KARISH [2007] FamCA 1162

FAMILY LAW - PROPERTY – Continuation of restraining orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Karish

RESPONDENT: Mr Karish

FILE NUMBER: MLC 3001 of 2007

DATE DELIVERED: 26 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 26 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fookes

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Mawson

SOLICITOR FOR THE RESPONDENT: Galbally & O'Bryan

ORDERS

1. THAT all interim applications be adjourned to the Judicial Duty List at 10.00 a.m. on 26 November 2007.

2. THAT the Husband and the Wife forthwith sign all documents and do all acts and things necessary to withdraw the sum of $80,000 from the Husband’s Commonwealth Bank Account Number … and thereafter disburse $40,000 to the Husband and $40,000 to the Wife such sums to be taken into account as an partial property distribution to each of the parties. 

3. THAT as soon as practicable the Wife sign all documents, give all necessary instructions and do all acts and things necessary to sell the four units in her name, at the C Resort in S, Egypt, as follows:

   (a)the Wife have the conduct of the sale and the responsibility for the appointment of selling agents and solicitors and or agents in Egypt.

   (b)the Wife and her solicitors keep the Husband and his solicitors fully informed as to the progress of the sale and provide copies of all documents relevant to the sale of each unit.

   (c)the proceeds of the sale of each unit after payment of any outstanding loan balance in respect of that unit in order to give clear title to any purchaser and after deduction of the proper costs and expenses of the sale be invested in an interest bearing account in the joint names of the parties in a bank in Australia and not to be disbursed pending further Order of this Court or written agreement between the parties.

   (d)the Wife provide the Husband with a full and proper accounting of the costs of and incidental to each of the sales.

4. THAT the Husband sign all documents and do all acts and things reasonably required of him in order to facilitate the sale, by the Wife, of any of the units referred to in Order 3.

5. THAT within fourteen (14) days each of the Husband and the Wife provide to the other the following:

   (a)full and complete details of any bank account, investment account, monies or shares in his or her name or under his or her control whether in Australia, Egypt or elsewhere.

   (b)copies of all financial or bank statements, correspondence or other documents relating to the investments referred to in 5(a).

6. THAT paragraphs 2, 4, 5, 6 and 7 of the Orders made 16 March 2007 continue in full force and effect and be further considered by the Court on the adjourned hearing date. 

7. That within twenty-one (21) days hereof the Wife provide to the Husband a complete list of all gold and jewellery in her possession or control together with photographs thereof in order to enable the Husband to obtain a proper valuation thereof which must be immediately disclosed to the wife’s solicitors. 

8. THAT seven (7) days prior to the adjourned hearing date the husband and wife each make, file and serve an updated and detailed Form 13 statement of financial circumstances.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Karish & Karish is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3001 of 2007

MS KARISH  

Applicant

And

MR KARISH  

Respondent

REASONS FOR JUDGMENT

1. The matter of Karish is before the court in the Judicial Duty List.  Mr Fookes of counsel appears for the wife, Mr Mawson of counsel appears for the husband.  Both parties are in court.  This matter was first before the court on 16 March 2007 on an ex parte application of the wife.  On that day his Honour Mushin J made orders restraining the husband from departing the Commonwealth of Australia.  An airport watchlist is in place.  Otherwise the husband was restrained from relying on or in any way making use of a power of attorney executed by the wife in his favour.  There are very specific restraining orders encumbering the husband from selling, transferring, dealing with, debiting or encumbering real property, shares or otherwise as described in paragraph 6 of that order save for a modest sum of $2000.

2. The husband has now lodged his passport with the Court.  I accept that he said he has destroyed the power of attorney provided by his wife and that is no longer available for use by him.  I observe that those orders were intended as interim orders and the application was adjourned for one week.  Whether or not therefore the modest caveat of the husband being permitted to have a sum of up to $2,000 as identified in paragraph 6 of the order is and remains reasonable is a significant question and is yet to be considered. 

3. As an overview and with their various assets these parties should each have a reasonable sum of money so that they can have a level of enjoyment of life and not be wholly deprived of assets.  This matter, after the ex parte orders, returned to court on 22 March when certain procedural orders were made and otherwise on 17 May when further orders were negotiated in relation to valuations and preparation for a financial conciliation conference.  As the matter is before me today, the ex parte injunctive order remains current as it was made until further order. 

4. There are substantial orders sought by each of the parties today.  The wife sought to persuade the Court to continue the injunctions to restrain the husband from going to Egypt, to restrain the husband from having any dealings with property or money, and wholly restrict and inhibit his financial transactions.  In contrast the husband desires immediately to travel.  He wants access to the Egyptian properties which he wishes ultimately to retain for himself.  He wants a fair and equitable spread of available cash moneys and assets.  The reality is that there is no trust as between the parties in this case.  Each are concerned of the position and financial dealings of the other.

5. Somewhere in the midst of this lack of trust are the three children of this marriage, two of whom are now adult.  I make no further observations on children's matters.  The wife has filed an amended application in a case on 20 September 2007 and there are substantial property, financial and injunctive orders sought therein.  The husband has filed a straightforward response seeking the dismissal of all orders and any other outstanding application of the wife.  Each party has two substantial affidavits filed, and a careful reading of those documents and all of their annexures highlight a very different financial position.  Currently before the court there are no realistic valuations and it is impossible to determine the likely net pool of assets.

6. Almost all significant property is in dispute, either as to ownership, such as whether the children have an interest in the K property known as W, or otherwise as to the ownership, valuation, encumbrances and state of debt of the nine apartments in the C complex in Egypt or the unit in L.  All of those matters need attention, certainly by way of updated evidence of valuation, state of repair and management of the properties or the legalities of that overseas country.  Those issues are beyond determination in this interim hearing list this day.

7. As I read the material and as I have received submissions from experienced counsel it does seem that not only are the parties polarised and far apart, they seek orders that simply entrench their own circumstances.  Perhaps that is to be expected in this case.  What I intend to do on the property issues is to permit the four units in the C Complex in Egypt that are registered in the wife's sole name to be sold by her.  The wife will have the sole conduct of sale but she must keep the husband's solicitors specifically advised as to all progress and outcomes.  All net moneys received are to be held in an interest bearing joint bank account under the control of the parties and pending further order of this court.

8. All expenses of and incidental to the sale of each of those four units are to be fully documented and disclosed.  There is some issue as to the current location of title, and if the four titles are held in the unit at L, then there will have to be some organised access and location of titles to facilitate settlement.  How that is to be done is currently beyond the ability of this court to make orders upon.  If need be the wife can fly to Egypt and organise those matters herself.  I stress the wife is not in any way to deal with the jointly owned property or the husband's four units in that resort complex.

9. As to encumbrances on title the court has been told that there are individual mortgages or liabilities, and what is intended to be discharged on the sale of those four units are only debts specifically related to those individual units.  If there is a more complex financial situation in that regard, then there will have to be a further application to the court made on proper documentation.  I will make no order in relation to the other unit at L, Egypt. 

10. Leaving aside the real property overseas, there are two properties in Melbourne both in K.  They are not to be sold, pending further order of the court.  The issue of whether or not the property known as W is held on trust for two or other children of the marriage, needs be the subject of proper evidence and whether that property is within or outside of the pool of assets must be determined as soon as practicable or at the very least all evidence to be relied thereon is to be before the court. 

11. The personal assets of the parties may be substantial.  I make no finding upon the gold or jewellery save that the husband says the wife has assets of $500,000 and the wife would regard that as being fanciful.  The wife must prepare a list of her jewellery, and I emphasise must include all gold and other items of value, and that, together with photographs thereof, must be made available to the husband for valuation purposes.  That should occur sooner rather than later.

12. As to bank accounts and all other investments, these must be identified and disclosed to the other party.  I make no finding upon the allegation that the husband has moneys in accounts overseas which are frozen or beyond his ability to access.  What I require is the full identification of all investment assets, bank accounts and the like be they within or outside of Australia.  There is one particular account, a Commonwealth bank account where approximately $80,000 is currently invested in the name of the husband.  What I intend by these orders is for a sum of $40,000 to be paid to the husband and $40,000 to the wife.  Any balance is to remain in that account.  That will be a partial settlement of property which I find to be a proper and compelling outcome.  The husband and wife will detail to the court how those moneys are hereafter expended.  I do not preclude any other application being made in respect of other moneys, though I am mindful on the evidence of the husband that within Australia he has minimal available cash assets or investments.

13. Again, I do not make that as a finding of fact as I have not heard evidence, but I am relying on submissions of experienced counsel.  As to the wife, there are other available sums and I have particularly been referred to the annexure to her affidavit, annexure A, which details very significant sums expended.  I make no finding or further comment.  I observe that they include gifts for purchase of shares, the expenditure of legal fees and moneys substantially sent to Egypt.  All of those matters will need further and detailed investigation and explanation and I preserve all of those issues and arguments to the parties on another day.  I am simply mindful that there are significant sums of money in this case that have been spent or deployed by one of the parties though with the caveat that it may have been with the consent or knowledge of the other party.

14. I well and truly understand that these orders are a stop gap measure.  I am not persuaded to overturn the original ex parte orders and, as I discussed with Mr Mawson during argument, those orders have now been in place for six months without appeal and with no other orders being made in variation thereof.  It is a considerable inconvenience to the husband and it does no doubt markedly impact upon his lifestyle.  In contrast his home is currently Australia and his children live here.  His previous travel has largely involved investment and purchasing decisions or enjoyment and lifestyle issues.  I find there to be no specific and urgent reason to permit his immediate travel, out of Australia and to Egypt.  There is no significant level of disruption to his lifestyle or financial assets that I am convinced will warrant the orders being discharged on the basis of the current information now before me.  I carefully make no further finding of fact and all of these issues are alive and before the Court to be determined on the adjourned hearing date.

15. This court will have to look at the nature and impact of those orders and the fact that they were made on an ex parte basis, and determine whether the wife made full and proper disclosure to the court when those orders were first obtained.  I do however underline that those orders, as a matter of natural justice and otherwise as a matter of law in relation to the proper exercise of discretion and granting of injunctions, should not continue beyond a proper and necessary date.

16. I intend to allow to the wife a reasonable time to sell and repatriate to Australia funds from the four C complex units.  I propose to otherwise adjourn all extant applications to a date which will allow a proper time to organise, conduct the sale process and settlement.

17. I have no knowledge of submissions of evidence before me as to what is an appropriate time frame but doing the best I can and being conscious that this matter must be well and truly progressed before Christmas of this year, I would propose to return all matters in this judicial duty list on 26 November 2007.  That effectively gives two months from this day for the process to be undertaken for full and proper investigation to be available and for the parties to financially know where they are in terms of applications and orders sought.  The reality therefore is that the husband will be in Australia for another two months, but thereafter it is a matter for further argument and decision.

18. As I indicated to counsel and in part because of their experience, but in part because it is now after 4 o'clock and I need to deal with another matter in this busy duty list, I am going to ask of each of them to prepare with care and detail the order that is reflective of these extempore reasons and which will facilitate a sale of the units, the repatriation of the money within the joint care and conduct of the parties to Australia, and otherwise provide for the outcomes as I have determined. 

19. I will have these brief extempore reasons transcribed, placed upon the court file and made available to the parties and the judge hereafter having this matter before them.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

Associate

Date:  1 October 2007